Forget Patents: Why Open Source Licensing Concepts May Lead To Biotech Innovation

from the share-and-share-alike dept

One of the main forces driving the move to open access is the idea that if the public has already paid for research through taxation or philanthropy, then it's not reasonable to ask people to pay again in order to read the papers that are published as a result. The strength of this argument is probably why, in part, open access continues to gain wider acceptance around the world.

But the same logic could be applied to the commercialization of publicly-funded research. Why should people be asked to pay often elevated market prices demanded by companies for these products -- which naturally try to maximize profitability -- when it was the public that funded the initial work that made those products possible in the first place?

In this open-source model, sublicensing to for-profit entities is encouraged but is nonexclusive. For-profit companies licensing the technology are encouraged to innovate on the platform, which will provide protectable IP for them, help lower the barriers to market entry and provide patients with even better versions of the technology. Open-source information exchange and evolution of the technology is encouraged rather than discouraged, with the premise that knowledge will empower for-profit companies that want to carve out IP-protected niches while empowering academic scientists with a firm grasp of the state of the art.

It's a detailed, fascinating piece that explores the current problems with the commercialization of research, including the following thoughts on why the Bayh-Dole Act of 1980 has failed to boost technology transfer from the academic world to industry as originally hoped:

In the wake of Bayh-Dole, the technology transfer policy of many AMCs [academic medical centers] has been to pursue the broadest patent rights for as many inventions as possible (all at great expense), sometimes without sufficient regard for whether there is enough validation of a discovery for assets to be licensed and/or commercialized; similarly, too often, startups are spun out of AMCs without sufficient due diligence, resulting in many enterprises that fail to receive sustainable funding from the investment community.

Frangioni's approach is quite different. Since the non-profit foundation is funded by the public, the focus is on maximizing patient benefit rather than financial return. On novel way of doing that is requiring reciprocity from those using the foundation's knowledge:

enablers [researchers, surgeons and technology licensees] can purchase technology but only after signing an agreement to deposit knowledge gained with the technology into the Knowledge Bank [a publicly accessible database], through what we call the knowledge feedback loop. Here again is the principle of giving something when getting something: the purchaser must create new knowledge for the public good to have access to the technology.

The open source model was rooted in the original academic ideals of sharing knowledge and cooperative development. The secrecy needed for commercial development and patents is damaging to academic institutions and knowledge development. It can also lead to the loss of the best researchers to Industry, which reduces the value of academic institutions to their student body. In the longer term it can also damage industry, as new graduated do not have the up to date knowledge of a field because it is all locked behind corporate walls. Then industry will complain about the lack of quality in new graduates.

Open source? Nah.

The sad thing about this willfully blind wishful thinking is that it ignores much of experience. India thumbed its nose at patent law for decades. India is chock full of very, very smart people. How many great drugs came out of India during that time? While I hesitate to say "zero", I'm pretty sure it was close to zero. The drug companies just copied all of the Western innovation. They had every opportunity to practice this patent-free, open source development model and they couldn't produce anything.

To make matters more complex, it's not clear that copies are as good as the originals. The FDA just stepped up investigating generic copies after repeated reports that they don't work like the originals.

It would be nice if these ideas would work, but they've been tested extensively in India and communist countries. I'm afraid the experiment has been done. Now be a scientist, not a intelligent design fanboi.

"In this open-source model, sublicensing to for-profit entities is encouraged but is nonexclusive."

so what's the point in sublicensing again, if it's nonexclusive then you dont have to sublicense, you can take the open model and use it for your own purposes, and not "give back".

so what benefit is achieved because you chose the sublicense ?

"For-profit companies licensing the technology are encouraged to innovate on the platform, which will provide PROTECTABLE IP for them" How is it protected ??

protectable IP would mean intellectual property that the for-profit company can keep to themselves for profit.

you've just shifted the IP from the person who developed that IP to a 'for-profit' company so they can profit from someone elses IP..

and if it is PROTECTABLE IP then, that in itself is a protection on IP, something I thought you were against Mr Masnick ?

OPEN SOURCE, is not a good model to hold up as an example of great innovation or technical progress, or a commercial success, as it's proven not to be the case, the OSS model has not achieved anything like the stellar results that have been predicted, nor has it created much in the way of technical progress or advancement in computing technology..

this model you have posted here, is not like the FOSS model or that of the GPL, and would probably not pass the stallment FSF sniff test either.

but how can any model claiming an open development system, be able to also hold "protected IP" ??

Another, perhaps even better, approach might be to regard public funding of private research as an interest free public loan, repayable over the first five years of the company's commercial operations. All documentation, of course, would be open until repayment was complete. The COMPANY, not the product line, would be responsible for the repayment. Any patents resulting from the research would remain public, but would be available for sale after the five year period.

Read the OS Definition

Glen wrote: This is exactly how open source software works: anyone can take the code and build on it, but they must give back their additions to the community so that others can build upon them in exactly the same way.

Actually that's not what the Open Source Definition says. It only requires that you provide your source code if you give your version of the software to someone else. Even for code under the GNU GPL (one of the stronger OS licenses) you can make as many private changes as you like to the code without having to give back your source for those changes. The requirement to provide your source only kicks in when you distribute your code to someone else, and even then you only have to give your source to people who have copies of your version. In general you do not have to hand your changes back to "the community" that you got the code from, although you can't stop your customers from passing copies on. [IANAL, TINLA, read the specific license for the code]

Re: Open source? Nah.

Knowledge as commons

If someone likes to educate him/ herself in more depth on these matters search for research on "knowledge(as) commons" , lots of work done on academic and pharma IP.
There is more to talk about than just FOSS.